March 14, 2017
Attorneys for World of Boxing and Alexander Povetkin have filed a motion for judgment as a matter of law and/or a new trial this past Friday. The hearing is scheduled for April 21, 2017 before the trial court judge in New York.
A jury determined that Povetkin took the banned substance Meldonium after January 1, 2016. It was the sole issue determined at trial.
World of Boxing and Povetkin attorneys intimated that they would be moving for either an appeal or this relief stating issues with the decision and conduct of Wilder’s attorneys.
Under Federal Civil Rule of Procedure 50, Judgment as a Matter of Law is a motion that can be made during trial or after. Essentially, it requests the judge take the decision out of the hands of the jury citing that the other party has not proven its case, and as a matter of law, should rule in favor of the moving party.
Under Federal Civil Rule of Procedure 59, a Motion for New Trial, may be requested any time within 28 days after the jury verdict. It may be granted if there was a serious erroneous result or a miscarriage of justice.
The motion is long and outside the bounds of the page length for a motion and the attorneys have asked attorneys to file extra pages. The attorneys for World of Boxing and Povetkin claim that the jury verdict was not based on the evidence, the testimony of one of Wilder’s experts should not have been relied upon, the timing of the trial did not allow for all the questions to be answered and the purported misconduct of Wilder’s attorney.
The motion goes before the trial court judge which makes it somewhat hard for the moving party because they are arguing that the judge did not oversee their trial properly and thus must do it again. These motions would be quicker than an appeal although it would seem that they are exhausting all options. MMA Payout will return later with a substantive look at the claims.
February 13, 2017
A jury in New York took just 32 minutes to determine that boxer Alexander Povetkin took meldonium after the substance was banned on January 1, 2016 per ESPN.
The 9-person jury, which included a chemist, made the decision on Monday after a 3 day trial in which both boxers attended.
Despite the verdict, there might be an appeal. A letter dated February 12, 2017 by World of Boxing’s attorneys cited “gross and extensive misconduct” during the trial. The letter was filed prior to Monday’s jury verdict we presume.
If there is no appeal, it appears that Wilder and his promoter Lou DiBella will receive a portion of the money still in escrow. Wilder was due $4.5 million to fight Povetkin while there was a $715,000 bonus for the winner. The attorney for Wilder and DiBella believes that the judge will release the funds.
While its early, one would have to expect a Motion for New Trial and/or an appeal from World of Boxing based on the letter from their attorneys. Still, the basic theory of the case by Wilder was that there were 4 VADA drug tests in April. The first 3 did not show any traces of meldonium but the fourth one did. Thus, he must have taken the banned substance after the third test. World of Boxing argues that despite the negative tests, Povetkin had meldonium in his system from 2015 and it just was not picked up by the tests.
We will now see how much more legal fees World of Boxing will want to invest in this case. MMA Payout will keep you posted.
February 10, 2017
This week Deontay Wilder and Alexander Povetkin went to trial to determine whose fault it was that cancelled their fight in Russia this past May.
The sole issue to be decided at trial is whether Povetkin took Meldonium after January 1, 2016, the date that it was banned by WADA.
The trial is a battle of the experts with each side arguing about the admissibility of testimony and evidence. The science of determining Meldonium in the system is key. Povetkin admits to taking Meldonium in 2015 as prescribed by a physician. However, he denies taking it after 2016. WADA banned the substance on January 1, 2016.
Four VADA tests by Povetkin leading up to their anticipated fight in April 2017 occurred. Povetkin’s VADA tests on April 7, 8 and 11, 2017 came up negative. However, an April 27, 2017 test showed Meldonium. World of Boxing claims that the Meldonium are traces from his 2015 use.
Trial began this past Monday.
Per a pretrial order dated January 31, 2017, the parties included specifics related to trial including experts. The experts were to have submitted reports, the basis of their testimony, prior to the start of trial. The Wilder legal team retained Anthony Butch, Ph.D. to testify about the testing of banned substances and the result of Povetkin’s tests as it relates to detection of Meldonium. Essentially, Povetkin’s test results reveal he took Meldonium some time between April 11 and his last VADA test of April 27, 2016. They also named Daniel Eichner, Ph.D. as a possible expert to testify regarding the positive test results. He was added after World of Boxing added Dr. Douwe de Boer.
The World of Boxing team included several experts regarding the detection of Meldonium with the conclusion that Povetkin did not take the drug post-January 1, 2016. This included Dr. Boris Simkhovich and Dr. de Boer. Notably, Dr. de Boer was a late addition to the expert list and submitted a report which Wilder’s attorneys opposed.
On Thursday night, attorneys for Deontay Wilder requested to call Dr. Anthony Butch as a “very brief rebuttal witness” as it relates to World of Boxing’s expert, Dr. de Boer. The claim to use Dr. Butch is that Dr. de Boer disclosed an “entirely new theory of the case” during his trial testimony. Additionally, Wilder’s attorneys wanted to call Dr. Boris Simkhovich as a rebuttal witness. However, Dr. Simkohovich was a designated expert of World of Boxing but was not called by the World of Boxing when they put on its case.
The new revelation addresses, according to Wilder’s attorneys, the reasons why Povetkin’s April 7, 8 and 11, 2016 urine samples had no detection of Meldonium but there was detection of Meldonium in his April 27, 2016 test: ion suppression.
Dr. de Boer was a late add as an expert by Wilder’s legal team. The presiding magistrate, Judge Gabriel Gorenstein allowed Dr. de Boer to testify however he would have to submit to a deposition prior to trial as well as having an expert rebut the report.
The testimony from Dr. de Boer suggests due to ion suppression, Meldonium was not detected in the first three tests of April because the method of analyzing (mass spectrometer) did not pick up the Meldonium due to a competing molecule suppressing the Meldonium molecules. But, the April 27th test contained residual Meldonium which it was able to pick up.
The claim is that Dr. de Boer’s theory is based on the late production of Dr. Butch’s raw data. Despite submitting to a deposition, Dr. de Boer was precluded from answering questions about the report at his deposition per instruction from the Magistrate as the two sides butted heads over the issue.
They also wanted to call Dr. Simkhovich as a witness as Wilder’s side believed that his testimony was contrary to that of Dr. de Boer’s testimony which would seemingly show a flaw in World of Boxing’s case.
Attorneys for World of Boxing argue that Wilder’s problems are his own as the Court gave Wilder an option of deposing Dr. de Boer on Feb 1 or 2 or postpone the trial. Wilder opted to go to trial and depose Dr. de Boer. They also argue that Dr. de Boer’s report and data were provided to Wilder’s side prior to the deposition and they could have asked questions about it. They also argue that Dr. Simkhovich cannot be used as a witness as he was not called by World of Boxing and would be inadmissible.
The legal fights over inclusion of expert testimony occurs a lot and certainly each side wants to preserve their right to an appeal if needed. The credibility of the experts will be key and the efforts to rebut testimony is a way for the legal teams to get the last say before a jury.
February 6, 2017
World of Boxing has submitted a rebuttal expert to address the additional “raw data” supplied by the UCLA Olympic Analytical Laboratory.
The report is from Biochemist Dr. Douwe de Boer. Dr. de Boer reviewed the information including the rebuttal expert report from Wilder’s expert. Importantly, it includes review of Povetkin’s VADA urine drug tests from April 8,9, 10 and 27th.
The sole issue at trial is whether Alexander Povetkin took Meldonium post-January 1, 2016. Wilder claims he did. Povetkin argues that the finding of Meldonium occurred in 2015 prior to the WADA ban.
The anticipated theory of the case is that the negative drug tests of April 8-10 and the positive drug test of April 27th for Meldonium show that Povetkin took the drug after his April 10 test.
However, Dr. de Boer concludes that “the so-called “negative” results for Meldonium in some of the urine samples collected does not mean that no Meldonium is present.” He asserts that a possible concentration was “sometimes below” the limit to detect it. He claims that some of the samples were “not negative,” but merely “not adverse.” He concludes that based on the low values “of a logical pharmacokinetic profile, its unlikely Povetkin took Meldonium post-April 11.
So, it will be a battle of experts at trial. Dr. de Boer suggests that Povetkin had Meldonium in his system from his physician prescribed use prior to the WADA ban. But, the tests that revealed it to be negative actually had Meldonium in them. Thus, Povetkin’s expert argues that there would be no inconsistency in the tests as the Meldonium that showed up in the April 27 test was not new. We should see how this theory plays out this week.
February 4, 2017
Meldonium is the key issue when attorneys for boxer Deontay Wilder and his promoter Lou DiBella square off against Alexander Povetkin and his promoter World of Boxing. In the latest filings, Wilder’s attorneys claim that Povetkin’s side withheld a damaging email it sent to VADA regarding Povetkin’s testing.
Now, Wilder’s attorneys are seeking to introduce the evidence to reveal that in production of documents an email was withheld.
The crux of the issue that will go to trial next week is whether Alexander Povetkin took Meldonium after the official WADA ban on the substance January 1, 2016. Wilder’s attorneys claim Povetkin took the banned substance after January 1 thus the reason the heavyweight pulled out of an anticipated fight in Russian in May 2016. Povetkin’s claim is that he took the drug prior to January 1, 2016 as prescribed by his physician and prior to the ban. They plan to introduce evidence and testimony that Meldonium can take time to leave the system.
One of the big issues will be a series of VADA drug tests on Povetkin. Tests in April 2016 reveal Povetkin had negative tests from April 7, 8 and 11 but a latter test on April 27 detected Meldonium.
Wilder’s attorney provided the court with a supplemental expert report which analyzed raw data from the tests. Povetkin’s attorneys are fighting to include a rebuttal expert report which suggests that the raw data analyzed shows that Povetkin may have had Meldonium in his system during the April 7, 8 and 11 tests.
The anticipated working theory is that Wilder will argue that the negative tests in early April plus the April 27 test show that Povetkin took the drug post April 11, 2016.
Povetkin rebuts this theory with the argument that the negative tests actually show the possibility that the fighter had Meldonium in his system at the time.
Perhaps damaging the Povetkin side is the withheld email which is purportedly from a representative of the World of Boxing, Dmitry Ivanov, to VADA’s Margaret Goodman which reads:
I would like to discuss with you about tests. In Spain it were t[h]ree times tests. It is too much. ***Recently I wrote about our best time table for.
Cause you know it will be very important fight in our career and we need have the best preparation and limit tests in order not to negative result.
We are really can’t have a tests every other days.
Hope you understand me in this issue. * * * Help to us make preparation in the good regime. * * *
p.s. I am sorry about my English. Hope you understand me right.
Wilder’s attorney claim that this email shows that World of Boxing is trying to conceal something by requesting that Povetkin’s drug tests are limited.
Povetkin’s attorneys have yet to respond.
If there is such thing as a hot document, Wilder believes that this is one that fits its theory of the case “like a glove” as it wrote to the court on Thursday of last week. It’s likely we’ll see the introduction of more dueling expert reports and rebuttals. How much will the court allow before the trial starts will be up to the court.
February 2, 2017
As trial in the Deontay Wilder-Alexander Povetkin is ready to go next week, the attorneys for each side are fighting over expert data.
The sole issue to be determined at trial is whether Povetkin ingested Meldonium after January 1, 2016. Povetkin took Meldonium as recommended by his physician in August and September 2015 prior to its ban by the World Anti-Doping Agency (WADA). Meldonium remains in the system for many months after its use. WADA provided a notice on June 30, 2016 regarding Meldonium’s inclusion on the Prohibited List and excretion studies related to when the substance would leave the system.
The law firm of Arnold & Porter, the attorneys for Povetkin and his promoter World of Boxing are requesting the court to submit a rebuttal expert in light of a supplemental report provided by Wilder. Arnold & Porter claim that Wilder’s attorneys, Judd & Burstein, provided additional biological data from the UCLA Olympic Analytical Laboratory concerning Povetkin’s test results. The supplemental expert report included information from the data. The discovery deadline was in December so the parties are at an impasse regarding the inclusion of the information in evidence. Of course, Wilder’s attorneys would object to the inclusion of the new expert from Povetkin at this time since they did not have time to depose the expert on their opinion.
In all likelihood, the court will grant the new expert and a report, if any, but grant Wilder’s attorneys to depose him prior to his in court testimony.
From Povetkin attorney’s standpoint, they claim that Wilder’s side will present evidence that Povetkin took Meldonium after the April 11th VADA test (urine collection) but before the April 27 VADA test. The evidence, Arnold & Porter suggests, are negative tests for Meldonium on April 7, 8 and 11 but an April 27 test that yielded a positive result. But, Povetkin’s attorneys argue that the newly provided data and supplemental expert report show that “Meldonium had washed out by April 11.” Essentially, the argument is that the “raw data” may show trace amounts of Meldonium in the previous tests thought to be negative.
To break this argument down, Povetkin’s attorney want to explain the reasons for the “raw data” and supplemental expert report. Thus, they want to have their own expert to render an opinion on the results and Wilder’s expert report. One would assume that they would claim that the data suggests that one cannot conclude that Povetkin took Meldonium after January 1, 2016 despite the “negative tests.”
MMA Payout will continue to follow.
August 7, 2016
MMA Fighting reports that USADA test results could be expedited which would allow for UFC officials to know ahead of the event whether or not a fighter fails a drug test. Of course, the expedited results would come at a premium.
While the Brock Lesnar test results were received within industry standards, it would seem clear that the results could have been expedited if requested.
Expedited results could cost as low as $35 per sample but reach a maximum of $450 depending when the lab results are performed. Per the article, requesting expedited results does not necessarily mean that they will come back in an expedited time.
Expedited results were not requested for any fighter at UFC 200. This would include Brock Lesnar who tested positive twice for banned substances.
Andy Foster is quoted in the article. He thinks that requesting expedited results for out-of-competition testing would be a benefit.
It would seem logical that in order to protect the safety of its fighters, the UFC would request expedited results despite the costs involved. While the article notes that it Is not definitive that results would come in time prior to an event, there is that opportunity to prevent someone on PEDs not to fight someone not on PEDs. With USADA ramping up testing of UFC contracted fighters, it does not seem like expedited requests across the board. But, it would be important for the UFC to look into expedited requests for championship fights and the main card fighters. While this may get expensive, if they are truly invested in the health and safety of its fighters, it’s a worthy cost.
June 26, 2016
Although Deontay Wilder is scheduled to fight Chris Arreola on Fox next month, he’s embroiled in a court battle against Alexander Povetkin and his promoter, Andrey Ryabinskiy due to a purported failed drug test which scratched the fight between the two.
On June 13, 2016, Wilder filed a lawsuit against Povetkin, Ryabinskiy and World of Boxing, LLC (“WOB”) for breach of contract and seeking the court for a declaratory judgment. In addition to the money that has been put up in escrow for the fight
10 days later, World of Boxing, Povetkin and Ryabinkiy (“WOB”) filed sued against Wilder, Lou DiBella and DiBella Entertainment, Wilder’s promoters. WOB is filing claiming causes of action for breach of contract as well as defamation.
Both lawsuits were filed in the U.S. District for the Southern District of New York.
Wilder and DiBella Entertainment, Inc. v. World of Boxing, LLC and Alexander Povetkin
The lawsuit claims breach of contract against WOB and Povetkin.
The facts, as told by Wilder’s attorney are below. Also added, are additional facts from the WOB lawsuit which we identify as well.
- The World Boxing Council (“WBC”) ordered Wilder and Povetkin (as the mandatory challenger) to begin negotiations for Wilder’s mandatory title defense of his WBC World Heavyweight Championship.
- No agreement could be made and a purse bid was ordered. WOB won the purse bid at a price of $7.15M. Notably, the WOB lawsuit claims DiBella’s bid was for $5.1M.
- The agreed payout would include 10% of the amount bid ($715K) to the winner as a bonus and then a 70-30 split thereafter. But, the parties still had to negotiate other parts of the fight including drug testing. The amount would also cover a 3% WBC sanction fee.
- According to the WOB lawsuit, Wilder would receive $4,504,500, Povetkin $1,930,500 and the winner would receive $715,000.
- Wilder’s side wanted to institute a drug program conducted by the Voluntary Anti-Doping Association (“VADA”).
- Negotiations continued but suspicions by Wilder’s camp about Povetkin’s use of performance enhancing drugs increased.
- With the parties at an impasse, the WBC stepped in and instituted an agreement on April 6, 2016. In the agreement, the drug testing program included VADA testing under the “WBC Clean Boxing Program.”
- Since WOB won the purse bid, the fight was to take place in Moscow, Russia on May 21, 2016.
- An agreement was signed on April 11, 2016. A copy is attached to the Wilder Complaint and is below.
- On April 19, 2016 an Escrow Agreement was entered into in which $4,369,365 was put into an Escrow (identified as Chicago Title in the WOB lawsuit). The Escrow Agreement contained a (confidential per Wilder’s attorneys) liquidated damages provision.
- Povetkin tested positive for Meldonium in an April 27, 2016 test.
- The WBC issued a ruling that the fight would not take place as scheduled.
- Wilder’s side advised the Escrow Agent not to disburse any of the money in escrow until it received a “joint instruction from the parties or a non-appealable order from a court of competent jurisdiction.”
Word of Boxing, LLC, et al. v. Deontay Wilder, et al.
The WOB lawsuit mitigates the finding that Povetkin tested positive for Meldonium. This substance was the same one that tennis star Maria Sharapova tested positive for and has received a two-year ban from the International Tennis Federation. In the UFC, Islam Makhachev tested positive for Meldonium and was pulled from the UFC on Fox 19 card. The ban on Meldonium was instituted by the World Anti-Doping Agency (“WADA”) on January 1, 2016. It was added to the list of banned substances and notice was given to athletes three months earlier in September 2015.
However, earlier this year, WADA acknowledged that there was a lack of clear scientific information on excretion times. Thus, this new revelation may actually overturn certain notices of infraction. In fact, this was noted by WOB’s attorneys in its lawsuit.
It argues that Meldonium found in Povetkin’s sample were traces and could not impact an athlete’s performance. It should be noted that both “A” and “B” samples found Meldonium. Povetkin admits to using Meldonim in 2015, prior to its ban. But, the facts reflect that he had a negative sample in April 7 and 8, 2016 but then tested positive in an April 27, 2016 sample.
WOB’s breach of contract claim cites that Wilder did not allow the WBC, the governing body for this fight, make a determination on the Povetkin drug test. Rather, Wilder and his promotion decided not to participate which WOB claims as the breach.
It also cites a breach of the escrow agreement with respect to the monies lodged in an Escrow Account which was to pay for the purses. WOB claims that since the bout did not occur, it should receive its money back from the trust but Wilder has “taken actions to prevent Chicago Trust from releasing such funds…including through a letter directing Chicago Trust to refrain from disbursing the Escrow Property to World of Boxing.
The defamation claim is rather unique as it claims Wilder and his promotion arm instituted a “Smear Campaign” against Povetkin. The WOB Complaint lists multiple news reports where it claims Lou DiBella and his promotion provided the outlets with false statements. WOB claims Povetkin did not cheat or lie and the “trace amounts” in Povetkin’s April 27, 2016 sample do not support the fact that he attempted to do so per the WOB lawsuit. WOB claims the statements were made to avoid their contractual obligation of Wilder having to fight in Moscow, Russia.
WOB is seeking $34.5M in its lawsuit. It is looking for the $4,369,365.000 in the Escrow Account and its defamation claim seeks $10 million.
Leave it to boxing to provide us with some of the more unique contractual legal issues in the sport. There is an issue of who breached the contract between the parties. Should Wilder have a claim due to the positive drug test from Povetkin? Or, does Povetkin side have an argument against Wilder for not following the WBC procedures? One has to think that Povetkin has a right to appeal the VADA ruling especially with the uncertainty of Meldonium. But, we see that the contentious negotiations between the parties have now spilled over into the courts. Wilder has found another fight in lieu of Povetkin. But, does Povetkin have a claim against Wilder for blocking funds to be returned to them in Escrow? It’s clear there is a liquidated damages provision in the Escrow Agreement of $2.5 million as both sides seek that it damages.
MMA Payout will keep you posted.